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Title: 

453-04-4718-m5

Date: 

October 20, 2004

Type: 

Retrospective Medical Necessity

453-04-4718-m5

DECISION AND ORDER

Petitioner, Liberty Mutual Insurance Company (Carrier), appealed the Findings and Decision of the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (TWCC) ordering reimbursement to Jeffrey S. Standifer, D.C., (Provider) for medical services provided to ____, (Claimant). Carrier disputes the IRO’s conclusion that these services were medically necessary.[1] The Administrative Law Judge (ALJ) concludes that Carrier has not met its burden of proof as to all services provided Claimant between July 3, 2003, and July 25, 2003, and Carrier should reimburse Provider for all services. However, the ALJ concludes that Carrier has met its burden of proof that certain services provided Claimant between July 26, 2003, and September 5, 2003, were not medically necessary and Carrier should not reimburse Provider for these services.

I. PROCEDURAL HISTORY

ALJ Penny Wilkov conducted a hearing in this case on July 26, 2004, at the State Office of Administrative Hearings, Austin, Texas. Attorney Kevin J. Franta represented Carrier. Provider appeared pro se. Neither party objected to notice or jurisdiction. The record was held open for the submission of exhibits and closed on August 26, 2004.

II. DISCUSSION

Background

Claimant sustained a work-related injury on ____, when she injured her left shoulder while repetitively stamping with a metal stamp as a data entry specialist at ____. Claimant continued to describe symptoms of persistent pain in her left shoulder, with her subjective pain level at nine on a scale of one to ten, with ten being the highest level of pain. Claimant was diagnosed with a partial tear of the left shoulder tendon at the rotator cuff, with evidence of symptom magnification.[2] Claimant has been receiving physical therapy from Provider since May 23, 2003. Carrier denied payment, using denial code V[3] for the following treatments[4] administered between July 3, 2003, and September 5, 2003: electrical stimulation,[5] hot packs,[6] ultrasound,[7] myofascial release,[8] therapeutic exercises,[9] therapeutic activities,[10] office visits,[11] along with a related report filing.[12]

  1. Evidence and Argument
    1. Carrier

Carrier argues that it should not be required to reimburse Provider for any medical services provided between July 3, 2003, and September 5, 2003, since the treatments provided were ineffectual and medically unnecessary.

Carrier submitted Claimant’s medical records and presented the testimony of Neal Blauzvern, D.O., a board-certified anaesthesiologist who specializes in pain management, who testified that he is familiar with the normal and medically reasonable therapy and treatment for repetitive trauma injuries. Based on his review of the records, Dr. Blauzvern testified that a limited course of conservative care was appropriate based on Claimant’s injuries but, in the absence of subjective or objective signs of significant improvement, Claimant should have been referred to an orthopedic surgeon. He pointed out that a continuation of ineffective treatment does not meet medical guidelines.

Dr. Blauzvern testified that Claimant, who allegedly sustained a left shoulder injury due to repetitive stamping, presented to Provider with a number of other unrelated symptoms: headache, balance problems, numbness, right shoulder pain, stiff neck, and stomach upset.[13] Three tests were performed, an MRI, x-ray, and a nerve conduction test, all of which confirmed a small partial tear of the rotator cuff, mild left C5 radiculopathy, normal right shoulder, and no other specific findings.[14]

In May 2003, Claimant consulted with a hand surgeon who gave her an injection and told her that she could return to light duty at work.[15] In July 2003, an orthopedic surgeon diagnosed Claimant with a tendon tear in the left shoulder along with symptom magnification, stating that her pain behavior seemed to be extreme.[16]

Considering the injury, Dr. Blauzvern’s testimony was that a normal course of conservative care would be two weeks of passive modalities followed by six to eight weeks of active exercise therapy. Then, if there were no improvement with these therapies, chiropractic care should terminate, and Claimant should be referred to an orthopedic surgeon for aggressive treatments such as injections, imaging studies, or surgery. This testimony corresponds with the opinion of a consulting orthopedic surgeon, who, on July 25, 2003, examined Claimant and acknowledged that treatment to that point had been reasonable and necessary, but further chiropractic treatment was not necessary. Dr. Blauzvern also pointed out that Jason A. Watkins, D.C., a peer-review chiropractor, agreed that the treatments were excessive beyond July 18, 2003,[17] stating that eight to ten week post-injury, if Claimant had not shown significant improvement, then discontinuation of chiropractic treatment and a referral to an orthopedic surgeon would have been reasonable protocol.[18]

Here, the Carrier points out there were no signs of improvement. In August 2003, Claimant stated that her subjective level of pain was at level six on a scale of one to ten with ten being the highest level of pain, and in September 2003, Claimant reported that her subjective level of pain had increased to a level of seven, on the same scale, indicating a lack of progress in her recovery.[19]

Provider

Provider argues that Carrier should be required to reimburse Provider for all medical services provided between July 3, 2003, and September 5, 2003, since the therapies, office visits, and a required report were medically necessary.

Provider testified that because Claimant had a partial tear of her rotator cuff, radicular pain to her wrist, and cervical pain in her neck, it was necessary to treat her with a graduated program. This consisted of two months of conservative care during the acute stage to heal the injuries, followed by a work conditioning program to increase flexion and range of motion and to decrease pain, and then, during the chronic stage, referral to a rehabilitation work hardening program to increase strength. The end result was that Claimant returned to work successfully due to the proper treatments and protocols.

Provider also presented the testimony of Claimant, ___, who began treatment with Provider on May 23, 2003, after her ____injury.[20] She testified that Provider’s treatments were effective since they relieved her pain and enabled her to return to work on October 20, 2003, after a work hardening program, without further complications of her shoulder or arm. She also testified that the subjective pain ratings were given prior to the therapy but that they were accurate.

Ronnie Shade, M.D., an orthopedic surgeon specializing in muscular and skeletal injuries was also presented as a witness. Dr. Shade testified that a partial rotator cuff injury like Claimant’s can be even more painful than a complete tear since the nerve endings are more exposed with a partial tear. He testified that the healing time for these injuries can be six to twelve months due to the lack of blood supply to the tendon. His testimony was the treatment protocol would be for a range of six to twelve weeks of therapy, post-injury, and if there was no improvement then an orthopedic referral would be proper procedure. In the meantime, passive modalities to help the healing would be appropriate and then progress to active physical therapies until the healing had reached the stage when work hardening could begin.

Applicable Law

Under the workers’ compensation system, an employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury. The employee is specifically entitled to health care that: (1) cures or relieves the effects naturally resulting from the injury; (2) promotes recovery; or (3) enhances the ability to return to or retain employment. Tex. Lab. Code Ann. § 408.021. “Health care” includes “all reasonable and necessary medical . . . services.” Tex. Lab. Code Ann.§ 401.011(19).

  1. Analysis and Conclusion
    1. July 3, 2003, to July 25, 2003

Provider should be reimbursed for all services provided to Claimant between July 3, 2003, and July 25, 2003. The medical professionals in this case, including Carrier’s expert witness, Neal Blauzvern, D.O., Provider’s expert witness, Ronnie Shade, M.D., the designated doctor, George M. Armstrong, M.D., and a peer review doctor, Jason A. Watkins, D. C., agree that after an injury of the type suffered by Claimant, there should be a course of treatment using passive modalities followed by active physical therapies for a period of time thereafter. There also appears to be a consensus of opinions that if the treatments are not successful then an orthopedic consult should occur. Thereafter, medical opinions differ on when the orthopedic consult should occur and whether chiropractic therapy should continue. Notwithstanding this difference, the ALJ finds the preponderant evidence supports that all treatments rendered to July 25, 2003, approximately nine weeks after the injury, were reasonable and necessary and that Claimant thereafter should have been referred to an orthopedic surgeon for a consultation. Thus, Carrier should reimburse Provide for all services billed between July 3, 2003, and July 25, 2003.[21]

July 26, 2003, to September 5, 2003

However, Provider should not be reimbursed for all services provided to Claimant between July 26, 2003, and September 5, 2003. This conclusion is based on an analysis of what services should continue while an orthopedic consult is sought for more aggressive treatment. Again there is an agreement by all medical professionals that passive modalities are only valuable during the initial stage of the injury when healing is underway. Even Provider’s expert witness, Dr. Shade, agreed that passive modalities are valuable initially with progression to active physical therapies until the healing had reached the stage when work hardening could begin. Dr. Blauzvern’s testimony was that a normal course of conservative care would be two weeks of passive modalities followed by six to eight weeks of active exercise therapy, and with no significant improvement, chiropractic care should cease, and more aggressive treatment offered by an orthopedic surgeon should be sought. On July 25, 2003, approximately nine weeks after the injury, Dr. Armstrong, an orthopedic surgeon who examined Claimant, concluded that chiropractic care rendered thereafter would be of no further benefit. Dr. Watkins, a chiropractor, further agreed that Provider’s treatments were not medically reasonable or necessary after July 18, 2003, approximately eight weeks after the injury. Therefore, the ALJ concludes that the preponderant evidence does not support that Provider’s services were useful for reducing Claimant’s subjective complaints of pain, promoting recovery, or enhancing her ability to return to work after July 26, 2003, and continuing through September 5, 2003. Accordingly, the disputed services rendered between July 26, 2003, and September 5, 2003, have been shown as not medically necessary.

In conclusion, the ALJ finds that Carrier is required to reimburse Provider for all services including electrical stimulation (billed as CPT Code 97014), hot packs (billed as CPT Code 97010), ultrasound (billed as CPT Code 97035), myofascial release (billed as CPT Code 97250), therapeutic exercises (billed as CPT Code 97110), therapeutic activities (billed as CPT Code 97530), office visits (billed as CPT Code 99212 and 99213), along with related report filing (billed as CPT Code 99080), rendered between July 3, 2003, and July 25, 2003, as medically necessary.

However, beginning July 26, 2003, until September 5, 2003, Carrier is not required to reimburse Provider for all services including electrical stimulation (billed as CPT Code 97014), hot packs (billed as CPT Code 97010), ultrasound (billed as CPT Code 97035), myofascial release (billed as CPT Code 97250), therapeutic exercises (billed as CPT Code 97110), therapeutic activities (billed as CPT Code 97530), office visits (billed as CPT Code 99212 and 99213), along with related report filing (billed as CPT Code 99080), provided to Claimant since Carrier has shown that the disputed services were not medically necessary.

III. FINDINGS OF FACT

  1. Claimant sustained a work-related injury on ____, when she injured her left shoulder while repetitively stamping as a data entry specialist at ____.
  2. Claimant continued to describe symptoms of persistent pain in her left shoulder, with her subjective pain level at nine on a scale of one to ten, with ten being the highest level of pain.
  3. Claimant was diagnosed with a partial tear of the left shoulder tendon at the rotator cuff, with evidence of symptom magnification.
  4. At the time of the injury, Claimant’s employer had its workers’ compensation insurance through Liberty Mutual Insurance Company (Carrier).
  5. Three tests were performed, an MRI, x-ray, and a nerve conduction test, all of which confirmed a small partial tear of the rotator cuff, mild left C5 radiculopathy, normal right shoulder, and no other specific findings
  6. Claimant has been receiving physical therapy from Jeffrey S. Standifer, D.C., (Provider) since May 23, 2003.
  7. Provider submitted a claim to Carrier for treatment rendered to Claimant from July 3, 2003, until September 5, 2003, including electrical stimulation (billed as CPT Code 97014), hot packs (billed as CPT Code 97010), ultrasound (billed as CPT Code 97035), myofascial release (billed as CPT Code 97250), therapeutic exercises (billed as CPT Code 97110), therapeutic activities (billed as CPT Code 97530), office visits (billed as CPT Code 99212 and 99213), along with related report filing (billed as CPT Code 99080).
  8. Carrier denied Provider’s request for reimbursement.
  9. Provider requested medical dispute resolution with the Texas Workers’ Compensation Commission’s (Commission) Medical Review Division (MRD).
  10. An Independent Review Organization concluded that treatments rendered from July 3, 2003, until September 5, 2003, were medically necessary.
  11. Carrier filed a request for a hearing before the State Office of Administrative Hearings on March 23, 2004.
  12. The Commission sent notice of the hearing to the parties on April 29, 2004. The hearing notice informed the parties of the time, place, and nature of the hearing; the legal authority and jurisdiction under which the hearing was to be held; the statutes and rules involved; and the matters asserted.
  13. Administrative Law Judge, Penny Wilkov conducted a hearing in this case on July 26, 2004, at the State Office of Administrative Hearings, Austin, Texas. Attorney Kevin J. Franta represented Carrier. Provider appeared pro se. Neither party objected to notice or jurisdiction. The record was held open for the submission of exhibits and closed on August 26, 2004.
  14. From July 3, 2003 until July 25, 2003, nine weeks after the injury, Provider’s services were reasonable and necessary, as generally accepted medical protocol following an injury of this type, but continued chiropractic treatment, after July 25, 2003, was not medically necessary.
  15. When Claimant had not shown significant improvement at nine weeks after the injury, then Provider should have discontinued treatment as not medically necessary and referred Claimant to an orthopedic surgeon for more aggressive treatment options.
  16. In August 2003, Claimant stated that her subjective level of pain was at level six on a scale of one to ten with ten being the highest level of pain, and in September 2003, Claimant reported a subjective level of pain of seven, on the same scale, indicating an increase in pain and a lack of progress in her recovery.
  17. A reasonable and medically necessary course of treatment for Claimant’s injury would be nine weeks of Provider’s services but, since no significant improvement occurred, the services should have ceased, and Claimant should have been referred to an orthopedic surgeon for aggressive treatments such as injections, imaging studies, or surgery.
  18. Provider’s services rendered after July 25, 2003 and continuing through September 5, 2003, did not reduce Claimant’s subjective complaints of pain, promote recovery, or enhance her ability to return to work.
  19. The disputed services rendered between July 26, 2003 until September 5, 2003, were not medical necessary.

IV. CONCLUSIONS OF LAW

  1. The State Office of Administrative Hearings (SOAH) has jurisdiction over matters related to the hearing, including the authority to issue a decision and order, pursuant to Tex. Lab. Code Ann. § 413.031(K) and Tex. Gov’t Code Ann. ch. 2003.
  2. Provider timely filed a request for hearing before SOAH, as specified in 28 Tex. Admin. Code §148.3.
  3. The parties received proper and timely notice of the hearing pursuant to Tex. Gov’t Code Ann. ch. 2001 and 1 Tex. Admin. Code §155.27.
  4. Carrier had the burden of proving the case by a preponderance of the evidence pursuant to 28 Tex. Admin. Code § 148.21.
  5. An employee who has sustained a compensable injury is entitled to all health care reasonably required by the nature of the injury as and when needed. The employee is specifically entitled to health care that cures or relieves the effects naturally resulting from the compensable injury, promotes recovery, or enhances the ability of the employee to return to or retain employment. Tex. Lab. Code Ann. § 408.021(a).
  6. Health care includes all reasonable and necessary medical services. Tex. Lab. Code Ann. § 401.011(19)(A).
  7. Carrier failed to establish that from July 3, 2003 until July 25, 2003, the physical therapy modalities rendered including electrical stimulation (billed as CPT Code 97014), hot packs (billed as CPT Code 97010), ultrasound (billed as CPT Code 97035), myofascial release (billed as CPT Code 97250), therapeutic exercises (billed as CPT Code 97110), therapeutic activities (billed as CPT Code 97530), office visits (billed as CPT Code 99212 and 99213), along with related report filing (billed as CPT Code 99080) are not reimbursable under Tex. Lab. Code Ann. §§ 401.011(19) and 408.021(a).
  8. Carrier established that from July 26, 2003, until September 5, 2003, the physical therapies rendered including electrical stimulation (billed as CPT Code 97014), hot packs (billed as CPT Code 97010), ultrasound (billed as CPT Code 97035), myofascial release (billed as CPT Code 97250), therapeutic exercises (billed as CPT Code 97110), therapeutic activities (billed as CPT Code 97530), office visits (billed as CPT Code 99212 and 99213), along with related report filing (billed as CPT Code 99080) are not reimbursable under Tex. Lab. Code Ann. §§ 401.011(19) and 408.021(a).
  9. Carrier should not reimburse Provider for all services provided to Claimant, as noted in Finding of Fact No.8.

ORDER

IT IS ORDERED that ___ is entitled to reimbursement by Liberty Mutual Insurance Company for the physical therapy modalities including electrical stimulation (billed as CPT Code 97014), hot packs (billed as CPT Code 97010), ultrasound (billed as CPT Code 97035), myofascial release (billed as CPT Code 97250), therapeutic exercises (billed as CPT Code 97110), therapeutic activities (billed as CPT Code 97530), office visits (billed as CPT Code 99212 and 99213), along with related report filing (billed as CPT Code 99080) which were provided to Claimant between July3, 2003, and July 25, 2003.

IT IS ORDERED that ___ is not entitled to reimbursement by Liberty Mutual Insurance Company for the physical therapy modalities including electrical stimulation (billed as CPT Code 97014), hot packs (billed as CPT Code 97010), ultrasound (billed as CPT Code 97035), myofascial release (billed as CPT Code 97250), therapeutic exercises (billed as CPT Code 97110), therapeutic

activities (billed as CPT Code 97530), office visits (billed as CPT Code 99212 and 99213), along with related report filing (billed as CPT Code 99080) which were provided to Claimant between July 26, 2003, and September 5, 2003.

Signed October 20, 2004.

PENNY WILKOV
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

  1. 1 Services from July 3, 2003, until September 5, 2003, include electrical stimulation (CPT Code 97014) , hot packs (CPT Code 97010), ultrasound (CPT Code 97035), myofascial release (CPT Code 97250), therapeutic exercises (CPT Code 97110), therapeutic activities (CPT Code 97530), office visits (CPT Code 99212 and 99213), along with related report filing (CPT Code 99080).↑
  2. 2 Petitioner’s Ex. 1, pp. 0037-0044 (Examination by George M. Armstrong, M.D., July 25, 2003).↑
  3. 3 Denial Code V is used when the insurance carrier is denying payment because the treatment or service is medically unreasonable and unnecessary based on a peer review.↑
  4. 4 Carrier also denied payment for CPT Code 97140 and CPT Code 98941 on several dates of service because these two codes are not recognized by the Texas Workers’ Compensation Commission’s 1996 Medical Fee Guideline.↑
  5. 5 CPT Code 97014.↑
  6. 6 CPT Code 97010.↑
  7. 7 CPT Code 97035.↑
  8. 8 CPT Code 97250.↑
  9. 9 CPT Code 97110.↑
  10. 10 CPT Code 97530.↑
  11. 11 CPT Code 99212 and CPT Code 99213.↑
  12. 12 CPT Code 99080.↑
  13. 13 Pet. Exh.1, p. A0018.↑
  14. 14 Pet. Exh.1, p. A0034 (MRI, June 11, 2003), p. A 0021 (x-ray, June 23, 2003) and pp. A0031-A0032 (EMG, June 9, 2003).↑
  15. 15 Pet. Exh.1, pp.A0022-A0023 (H. Jay Boulas, M.D.).↑
  16. 16 Pet. Exh.1, pp.A0037-A0045 (George M. Montgomery, M.D., July 25, 2003).↑
  17. 17 Pet. Exh.1, pp.A0075-A0077 (Dr. Watkins reconsidered his decision since initially stating that the treatment was not medically necessary after June 20, 2003).↑
  18. 18 Dr. Watkins noted that Claimant had not improved from the treatment since Claimant had reported a pain level of nine, on a pain level scale of one to ten, to Dr. Armstrong, and the same level of pain, nine, on the same scale, at the time of the initial examination, occurring nine weeks prior.↑
  19. 19 Pet. Exh.1, pp.A0068-A0069.↑
  20. 20 She was initially treated H. Jay Boulas, M.D., an orthopedic surgeon.↑
  21. 21 Services from July 3, 2003, until July 25, 2003, include electrical stimulation (CPT Code 97110) , hot packs (CPT Code 97110) , ultrasound (CPT Code 97110), myofascial release (CPT Code 97110), therapeutic exercises (CPT Code 97110), therapeutic activities (CPT Code 97110), office visits (CPT Code 97110), along with related report filing (CPT Code 97110).↑